CONSTITUTIONAL LAW ‑- LEGISLATURE (MEMBERS) ‑- CIVIL OFFICE ELIGIBILITY OF A LEGISLATOR FOR APPOINTMENT TO THE BARBER EXAMINING BOARD CREATED BY A SESSION OF WHICH HE WAS AN ELECTED MEMBER

CONSTITUTIONAL LAW ‑- LEGISLATURE (MEMBERS) ‑- CIVIL OFFICE ELIGIBILITY OF A LEGISLATOR FOR APPOINTMENT TO THE BARBER EXAMINING BOARD CREATED BY A SESSION OF WHICH HE WAS AN ELECTED MEMBER

(1) A member of the 1957 legislature is not eligible for appointment to the barber examining board created by that legislature by reason of the prohibition of Article II, Section 13 of the state.

(2) Upon expiration of his present term as legislator, a member of the 35th legislature will not be prohibited by Article II, Section 13, from appointment to a civil office created by that legislature.

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                                                                    June 4, 1957

Honorable George C. Starlund
Assistant Director
Department of Licenses
General Administration Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 75

Dear Sir:

            By letter dated May 14, 1957, you requested an opinion of this office regarding chapter 101, Laws of 1957, which created a barber examining committee to aid in the regulation of barbering, and providing for an appointed, salaried secretary thereof.

            We paraphrase your questions as follows:

            (1) Is a member of the 1957 session of the legislature eligible for appointment to the position of secretary of the examining committee, mentioned above, as created by that legislature?

             [[Orig. Op. Page 2]]

            (2) If the person is not so eligible, will he become eligible upon expiration of his present term as an elected legislator?

            We answer question (1) in the negative and question (2) in the affirmative.

                                                                     ANALYSIS

            Section 7, chapter 101, Laws of 1957, reads in part as follows:

            "Barber examinations shall be conducted by the barber examining committee.  The barber examining committee shall consist of five members appointed by the governor, who shall designate one of the committee members to serve both as chairman and secretary."

            The remainder of § 7 and §§ 8 through 13 set out the method and term of appointments and qualifications of appointees, methods and manner of conducting the committee's business, and the duties and authority of the committee.

            1. Article II, § 13, of the state constitution provides as follows:

            "No member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office in the state, which shall have been created . . . during the term for which he was elected."

            Thus, a member of the 35th legislature that adopted chapter 101, Laws of 1957, is prohibited from occupying a position on the barber examining committee if such is a "civil office."  This includes the secretary of the committee, since he must initially be a committee member, as stated in § 7,supra.

            The requirements by which the question of whether or not a member of the examining committee occupies a "civil office" are as follows:

             [[Orig. Op. Page 3]]

            (1) It must be created by the constitution or by the legislature or created by a municipality or other body through authority created by the legislature.

            (2) It must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public.

            (3) The powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature, or through legislative authority.

            (4) The duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature and by it placed under the general control of a superior office or body.

            (5) It must have some permanency and continuity and not be only temporary or occasional.

            Fitts v. Gibbs, 40 Wn. (2d) 444; State ex rel. Hamblen v. Yelle, 29 Wn. (2d) 68;State ex rel. McIntosh v. Hutchinson, 187 Wash. 61; AGO 53-55 No. 16 [[to Arthur B. Langlie, Governor on April 23, 1953]].

            All of these elements must be inherent within the particular position as created by the legislature or that position is not a civil office.  State ex rel. Hamblen v. Yelle, supra.  It is apparent from a reading of the appropriate sections of the legislation, cited above, that elements one, three and five are present.

            As to the second requirement stated above by which a "civil office" is determined, § 12, chapter 101, Laws of 1957, reads as follows:

            "The examining committee may, subject to the director's approval, promulgate such rules and regulations as it deems necessary not inconsistent with this act and it shall perform all acts necessary to effectuate the purposes of this act."

            The promulgation of rules and regulations is an exercise of the legislative function of government.  The legislative function is one of the three basic institutions of government, as we know it, and therefore is a part of the sovereignty of the state.  Thus, the legislature, by delegating legislative authority to the barber examining committee, has delegated a portion of the sovereign power of government.

             [[Orig. Op. Page 4]]

            Furthermore, this delegation of authority is for the "benefit of the public," in the words of the second necessary element, since the purpose of the committee is to aid in the regulation of barbers to make certain that those licensed to operate will not endanger the public health.  "That the legislature may enact laws for the protection of the public health and may license barbers with that end in view, is well settled."  McDermott v. State, 197 Wash. 79.  It is a valid exercise of the police power.

            As to the fourth requirement of a civil office, § 12, chapter 101, Laws of 1957, states that the activities of the examining committee shall be "subject to the director's approval."  Section 7 of that chapter reads, in part, as follows:

            "The examining committee shall be under the direct supervision of the director of licenses."

            It is apparent that the barber examining committee is, therefore, "an inferior or subordinate office, created or authorized by the legislature and by it placed under the general control of a superior office or body."

            Since all of the elements comprising a civil office are satisfied by this act of legislation, any member of the 35th legislature, which enacted it, may not be appointed to the barber examining board during his term of office as legislator by reason of the prohibition of Article II, § 13, of the constitution.

            2. A legislator is prohibited from occupying a civil office created by the legislature in which he sat "during the term for which he is elected" as stated in Article II, § 13, of the constitution.  The purpose of this restriction was stated inState ex rel. Pennick v. Hall, 26 Wn. (2d) 172, as follows:

            "The constitutional provision (Art. II, § 13) was written to prevent one who has been concerned in creating an office . . . from aspiring to such office not only while he is an incumbent of the office which created the other office . . . but for a definite time. . . ."

            The word "term" when used with reference to the tenure of office  [[Orig. Op. Page 5]] ordinarily refers to a fixed and definite time.  State ex rel. Hays v. Twitchell, 9 Wash. 530.  At the end of a legislator's term, this time expires.  From then on, Article II, § 13, has no application.  The provisions of the constitution should be construed in the common and natural view.  State ex rel. French v. Clausen, 107 Wash. 667.

            Therefore, it is our opinion that a member of the 35th legislature may be appointed to the barber examining committee, which was a civil office created by that legislature, upon expiration of his current term of office as an elected legislator.

Very truly yours,

JOHN J. O'CONNELL

Attorney General

ERNEST M. FURNIA

Assistant Attorney General